Proposed Rule Would Make Significant Changes to the H-2B Visa Program

The U.S. Department of Labor’s Employment and Training Administration and its Wage and Hour Division have issued a notice of proposed rulemaking that would, if adopted, make major changes to the H-2B temporary nonagricultural worker visa program. According to the U.S. Department of Labor (the “Department), the proposed rule would “ensure that U.S. workers receive the same level of protections and benefits as temporary foreign workers recruited under the H-2B program, and … provide better access for employers with legitimate labor needs.” ETA News Release, March 17, 2011.

The H-2B program allows U.S. employers to temporarily bring foreign workers to the United States to fill nonagricultural positions. H-2B workers are generally authorized to work for a period of less than one year, and may petition to extend this period for less than one year up to three times. After working in H-2B status three times, an individual worker must depart the United States for at least three months before seeking readmission in H-2B status. By statute, the H-2B program is subject to a cap of 66,000 H-2B visas per year.

To obtain an H-2B visa for an employee under current regulations, an employer must certify to the Department that the employer’s need for the employee is temporary, that there are not sufficient U.S. workers able, willing, and qualified to perform the temporary work, and that the employment of H-2B workers will not adversely affect the wages and working conditions of similarly situated U.S. workers.

In its Notice of Proposed Rulemaking (“NPRM”), the Department cites insufficient protections for U.S. workers under the current attestation-based model and evidence of extensive violations of the current regulations as the impetus for promulgation of the new rule. In an effort to curtail these abuses, under the proposed rule, employers would be required to perform more extensive and better documented recruitment of U.S. workers, to provide U.S. workers with the same benefits as H-2B employees, and to provide greater protections to foreign workers.

Recruitment. Under the proposed rule, employers would be required to register with the Department prior to submitting an Application for Temporary Employment Certification to employ H-2B workers. This registration would be required no fewer than 120 and no more than 150 days before the date of initial need for H-2B workers, and would be accompanied by documentation regarding the employer’s need for workers. Additionally, the new rule would require that all H-2B job orders be posted on an electronic job registry and maintained throughout and after the required recruitment period in an effort “to disseminate the job opportunities to the widest audience possible” and increase transparency in the program. NPRM at 15149.

The most significant changes to recruitment deal with the recruitment of U.S. workers. The new rule would require all employers to provide the Department with a list of all U.S. applicants referred for employment, a statement of whether the applicant was accepted or rejected, and the reason for rejection where applicable. Employers would be required to contact all former U.S. workers employed within the last year in the position for which H-2B workers are sought, to provide such employees with the terms and conditions of the job order, and to solicit the employees’ return. Employers would not, however, be required to contact those employees who were terminated for cause or who abandoned the worksite prior to completion of the employment period.

Protection of U.S. Workers. The proposed rule would require that all U.S. workers in corresponding employment be paid the same wages as their H-2B co-workers. Additionally, employers would have to provide all employees who are unable to return to their permanent residences with transportation and daily subsistence. Finally, employers would be required to cover any visa or border-crossing fees which otherwise would be incurred by the H-2B employee. According to the Department, this would prevent exploitation of foreign workers and protect their U.S. counterparts.

Protection of Foreign Workers. The proposed rule would require that employers provide a copy of their job order to all H-2B workers no later than the time of application for a visa and to workers in corresponding employment no later than the first day of work. Additionally, the employer would be required to post a notice of worker rights and protections in a conspicuous location at the job site to ensure that all workers know their rights.

Documentation. Under the current regulatory scheme, employers simply attest to their efforts at recruitment of U.S. workers; under the proposed rule, they would be required to submit documentation of their recruitment efforts, including information on recruitment conducted, means of posting, contact with former U.S. workers, and contact with labor unions where the union representation is prevalent in the field.

The changes under the proposed rule could have a significant financial impact on employers. While the Department describes these changes as necessary to curtail employer abuses of the H-2B program, the additional recruitment and documentation required by the new rule could come at a significant expense of time and money to employers. The Department includes in its NPRM estimations of the cost of each of these new measures to employers, but these costs will necessarily vary from employer to employer.

Members of the public are invited to submit comments on this proposed rule via the federal e-rulemaking portal at. The deadline for comments is May 17, 2011. Guidelines for comments are available at, along with the full text of the proposed rule.

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